SCOTUS takes on affirmative action

The Supreme Court seems poised to issue a ruling that could pare back affirmative action programs in higher education, judging by comments justices made during a Wednesday session on a case challenging racial preferences at the University of Texas.

It appeared clear from the justices’ often pointed questions during an extended hour and 20 minutes of oral arguments that the survival of the Texas program and others like it depends on the vote of Justice Anthony Kennedy.

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Three of the court’s four most conservative justices, Chief Justice John Roberts, and Justices Antonin Scalia and Samuel Alito, were clearly hostile to the Texas plan. Justice Clarence Thomas did not speak from the bench Wednesday, as is his custom, but he’s previously indicated opposition to such programs.

The court’s liberal wing was more receptive to the University of Texas program and to the idea of deferring to the judgment of educators. However, the court’s liberals are down one for the Texas case: Justice Elena Kagan recused herself because as solicitor general she approved a brief backing the university.

If the five conservative justices vote together, they could nix the Texas program and effectively restructure — or even end — affirmative action in higher education. If not, the case is unlikely to set any precedent, though the court could still kill the Texas system. A tie, 4-4, vote would let stand a lower court ruling that left the program in place.

Kennedy sounded largely skeptical about the Texas program, which uses race to boost the admission of African-Americans and Latinos. However, he didn’t come down squarely for or against the program and he gave no indication he is inclined to join a ruling that would forbid all use of race in college admissions at state-run schools.

Justice Sonia Sotomayor, the court’s only Hispanic, emerged as the most vocal defender of the Texas program among the justices.

Former Justice Sandra Day O’Connor, author of the court’s ruling nearly a decade ago that upheld affirmative action, was in the courtroom audience for most of Wednesday’s arguments on the Texas case. In the 2003 case, Grutter v. Bollinger, O’Connor upheld a University of Michigan Law School affirmative action plan but suggested such programs would no longer be necessary in 25 years.

“I know that time flies, but I think only nine of those years have passed,” Justice Stephen Breyer quipped at the outset of the arguments, suggesting that conservatives are intent on overturning Grutter.

Alito, who replaced O’Connor in 2006, offered some of the strongest criticism of the Texas program. He seemed particularly disturbed that it admits well-to-do minorities who don’t gain admission through a Texas law that grants a place at the university to everyone who graduates in the top 10 percent of a public high school.

After the lawyer for the university, Greg Garre, said the program admits minorities who “succeed in an integrated environment” to “break down racial barriers,” Alito jumped in.

“I thought the whole point of affirmative action was to help students coming from underprivileged backgrounds,” he said. He asked if the child of an African-American or Latino professional deserves a “leg up” over an Asian student “of average background.”

Garre said the point of the program is to ensure that minorities of different backgrounds are part of the student body.

“What you’re saying is race counts above all?” Kennedy chimed in.

”What we want is different experiences … that are going to come on campus,” Garre replied.